Federal Courts and Nominations

Justice Ketanji Brown Jackson dominated oral arguments and challenged conservative thinking in her first months on the Supreme Court, observers say

On the first day of the Supreme Court term, an attorney was delivering his closing arguments when Justice Ketanji Brown Jackson chimed in.

“Counsel, can you just speak to the representation that was made about the Sacketts’ property,” Jackson started to ask during a high-stakes environmental case heard on October 3.

The court has, in recent practice, typically reserved time for lawyers to offer their final word without interruption. But the newest justice appeared unaware of that rule, following up with four more questions. The back-and-forth came to an end once Chief Justice John Roberts interjected.

“We’ll give you an extra minute for your rebuttal,” he told the attorney.

The scene represented a learning moment for Jackson on her first day on the bench. But it also revealed how Jackson was diving into her new job quickly and comfortably – a rhythm she’s kept up over the past couple of months.

In the short time since her debut, Jackson has dominated oral arguments, become the focus of numerous media columns, issued her first two dissents, and received praise from the left and criticism from the right. Court watchers say it’s rare for a newcomer to be this vocal and attract such attention at the beginning of their tenure.

Whether Jackson’s presence will change the court and its decision-making remains to be seen. But in the meantime, Jackson, who broke barriers as the first Black woman on the court, seems to be breaking new ground.

“It’s unique. We haven’t really seen somebody who, out of the gates, is this engaged,” Adam Feldman, a Supreme Court scholar and author of the blog Empirical SCOTUS told Insider.

Jackson’s speaking time

Jackson has notably made waves because of how much she’s spoken from the bench so far. Feldman, who’s tracked that data, found that in the first eight oral arguments of the term, Jackson spoke 11,003 words – more than any other justice by far. The runner-up, fellow liberal Justice Sonia Sotomayor, spoke less than half that amount.

Over that same period, newly appointed justices on both sides of the ideological spectrum were significantly quieter than Jackson. Justice Amy Coney Barrett spoke 4,475 words in her first couple of weeks on the court. Sotomayor spoke slightly less than that. Justices Brett Kavanaugh and Neil Gorsuch each spoke fewer than 3,000 words.

“It’s just unusual for a justice to start off that comfortable. Usually there’s an acclimation period. We’ve seen it with just about everybody else on the court,” Feldman said, describing the so-called freshman effect: justices become more confident speaking and more ideological the more time they spend on the bench.

But that hasn’t applied to Jackson, who’s already shown a willingness to wield the mic at length. She’s piggybacked off of her colleagues’ points, grilled lawyers at the lectern, and at times, shared her perspectives to the court, some of which have been hailed by the left.

“She’s not only asking questions, but she’s setting up what the historic context is,” Feldman said. “She’s showing her position.”

Take the major voting-rights case, Merrill v. Milligan, that’s currently before the court. The dispute concerns Alabama’s Republican-led legislature’s 2021 redrawn congressional map, which a lower court struck down as a likely violation of the Voting Rights Act, the landmark 1965 legislation that prohibits voting discrimination on the basis of race. But Alabama turned to the Supreme Court, arguing its map was lawful and race-neutral.

“Why are you assuming it’s a race-neutral plan?” Jackson asked Alabama during oral arguments on October 4, adding: “We are talking about a situation in which race has already infused the voting system.”

The newest justice repeatedly questioned Alabama’s position, which stated that the 14th Amendment, adopted in 1868 to establish equal protections for all citizens, conflicted with the Voting Rights Act. Jackson pushed back.

The authors of the 14th Amendment were “trying to ensure that people who had been discriminated against – the freedmen during the Reconstruction Period – were actually brought equal to everyone else in society,” Jackson said. “That’s not a race-neutral or race-blind idea.”

Progressives in the legal world cheered on Jackson’s interpretation. She relied on the Constitution’s text to make her argument, they said, challenging the conservative judicial philosophy known as originalism.

“It’s long past time that we’ve had those different visions of the Constitution presented powerfully and publicly in the court,” Elizabeth Wydra, president of the progressive-leaning Constitutional Accountability Center, told Insider.

It’s not surprising that Jackson, appointed by President Joe Biden, has shared what’s considered a liberal view of the law. But what’s important, observers say, is Jackson’s readiness to divulge her thoughts. 

“In some ways it’s just a reflection of the fact that she’s probably the most well-qualified and experienced new justice we’ve seen in a long time,” Wydra said. “And I don’t mean that as a criticism against the other justices.”

The 6-3 conservative majority

Oral arguments allow the justices to ask questions, sometimes to aid their decision-making on a case. Lawyers try to fill in the blanks on uncertainties the justices may have.

But the debate is also the first time the justices learn their colleagues’ thoughts on the dispute. In other words, the justices are talking to each other just as much as they’re talking to the advocates before them.

Some court observers say oral arguments can potentially be an opportunity for justices to sway their colleagues’ thinking – though that doesn’t happen often. The justices might have their minds made up even before they hear a case, they say.

As a member of the liberal bloc, Jackson’s questioning might not shift the conservative justices’ votes or make a difference in the court’s decisions this term. The 6-3 conservative majority has recently handed down a slew of historic rulings that shifted the country to the right, and is likely to continue to do so, according to legal experts.

“I think the stuff on Jackson talking a lot is a waste of time. I mean, I don’t really care,” Josh Blackman, a professor at the South Texas College of Law, told Insider. “It’s nice for counting how many words she says, but it doesn’t really matter much. We’ll see how many votes she gets. I think that’s a far more important metric.”

Still, there are issues each term in which the ideological lines aren’t clearly drawn. That seemed to happen when the justices heard Moore v. Harper on December 7, a consequential case that could upend how American elections are run.

Besides the three liberal justices, some of the conservatives appeared skeptical about the argument made by North Carolina Republican lawmakers, who claimed that state legislatures have the authority to draw voting maps and set election laws without any oversight from the state courts.

During the three hours of oral arguments, Jackson frequently threw cold water on the idea. “Is it your argument that the state constitution has no role to play, period?” she asked.

Jackson also vocalized her concerns, which were echoed by lawyers arguing on the other side of the dispute.

“I guess what I’m a little worried about is the suggestion that when the legislature is exercising legislative authority in this context, it does not have to adhere to any state constitutional constraints on its power,” she said.

“That’s a hundred percent right, Justice Jackson,” the attorney responded.

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At times, Jackson looked around at her colleagues on the bench, seemingly to ensure that they were listening.

“She spoke for long periods of time, she got into the history, and it was just as much about her making the statement so it was out there, as it was, I think, to try to draw a response,” Feldman said.

The court has not issued any decisions this term yet. But regardless of what they may be, legal observers say Jackson’s voice on the court has been meaningful and should be paid attention to.

“It enhances the quality of judging to have such a brilliant and dedicated jurist like her on the bench, even if she is not necessarily going to change the result in any particular case because of the makeup of the court right now,” Wydra said. “It’s important for the American people to see that there are different visions of what constitutional equality and democracy mean.” 

And “even if her vision is in dissent for the moment, that is not necessarily going to be true forever,” she added. “Someday we could be seeing a Chief Justice Ketanji Brown Jackson in the majority.”

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